Excerpt:.....351(2) which specifically requires the case to be commenced afresh and to rehear witnesses when an accused person in imp leaded in pursuance of the provisions of section 20-a. not to do so renders the trial bad, benefit of which ought to go to the respondent. a separate trial would not be barred if the respondent had not been imp leaded in this case in pursuance of section 20-a. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the..........on perusal of evidence the trial court held that the sample bottles of tomato ketchup sold by the accused persons were the same which y. k. kapoor had supplied to them on warranty and bill exhibit d.w. 2/a and that the bottles sold to the food inspector were in the same state in which they were bought from y. k. kapoor. as regards y. k. kapoor it was held that the trial against him proceeded in disregard of the provisions of section 351(2) of the cr.p.c., 1898, in that after the charge was framed he was only given an opportunity to cross-examine the witnesses earlier examined and that as required by section 351(2) of the code the statements of the witnesses which were required to be recorded in the presence of y. k. kapoor, were not recorded and there being an illegality in the trial,.....

Judgment:

Prithvi Raj, J.

1. Shri B. K. Garg, Food Inspector of the Municipal Corporation of Delhi (hereinafter called the 'Corporation') on 29th May, 1967, visited the shop of Narinder Kumar salesman of Ram Swarup owner of Fancy Departmental Store at premises No. HS-28 Kailash Colony, New Delhi, and after disclosing his identity purchased three bottles of tomato ketchup bearing Code No. 493 of M/s. Northland, weighing 1050 grams on payment of Rupees 4.50 for analysis vide receipt Exhibit PA and cash memo. Exhibit PA/1 bearing the signatures of Narinder Kumar. Notice, Exhibit PB, was given and inventory, Exhibit PC, was prepared which besides the witnesses, was signed by Narinder Kumar in English who made the writing A to A on the inventory in his own hand. Thumb impressions of Narinder Kumar were also taken on the inventory. One sample bottle was given to Narinder Kumar. The sample of tomato ketchup on analysis was found adulterated by the Public Analyst vide his report Exhibit PE due to the presence of unpermitted coal tar dye. The Corporation, accordingly, filed a complaint against Narinder Kumar as salesman of Ram Swarup and Ram Swarup as owner of the shop in question, under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (hereinafter call 'the Act').

2. In support of its complaint the Corporation examined the Food Inspector, Shri B. K. Garg (PW 1) who supported the prosecution version noted above and Shri Kanwal Krishan (P.W. 3) who corroborated the testimony of Shri Garg besides G. R. Sharma (P.W. 2) who proved the complaint Exhibit P.G.

3. Ram Swarup in his statement recorded under Section 342 of the Cr.P.C. 1898, admitted that he was the partner of the shop but added that he was a sleeping partner. He, however, denied knowledge of the sample having been taken by the Food Inspector stating that he did not work at the shop and that he was not connected with day-to-day business of the shop Narinder Kumar in his statement denied having sold the tomato ketchup on behalf of Ram Swarup but stated that he was selling it on his own behalf and that he had sold the sample of the tomato ketchup as alleged by the Food Inspector. He admitted his signatures on cash memo and receipt as also on notice Exhibit PB, besides admitting that a sample bottle was given to him. He further admitted that inventory, Exhibit PC, was prepared at the spot but denied that any witnesses were present at that time or that writing A to A on Exhibit PC was his. He, however, admitted his signatures and thumb impression on the inventory at two places. To the question that the sample of tomato ketchup taken from him on analysis was found adulterated by the Public Analyst vide his report PE, he stated that he got those goods in sealed bottles from M/s. Northland Industries, through cash memo (Mark A) and that he had properly stored the articles and did not tamper with the same in any manner and sold the same in the same condition. He accordingly contended that the complaint had been wrongly instituted against him and that as a matter of fact the same should have been instituted against the manufacturer. He examined witnesses in defense. Ramesh Sahay (D.W. 1) stated that he was an employee of M/s. Northland Industries situate at Chuna Mandi, Pahar Ganj and their factory was licensed under the Fruit Products Order and that they were manufacturer of tomato ketchup, jams, tinned fruits etc. He admitted his signatures on the warranty, Exhibit D. W. 1/A stating that he issued the same to M/s. Fancy Departmental Store, Kailash Colony, New Delhi, on behalf of M/s. Northland Industries, on the instructions of its owner, Shri Y. K. Kapoor, the sole proprietor of their concern. The bottle D/1, he stated, was their product and that the label contained on the bottle was affixed on each of the bottles of tomato ketchup prepared by them.

4. Y. K. Kapoor (D.W. 2) proprietor of M/s. Northland Industries stated that bottle, D/2, was manufactured by their firm and was in original condition. He further admitted that cash memo, Exhibit D.W. 1/A was issued by their firm and bore the signature of their employee, Ramesh Sahay (D.W. 1).

5. On the said evidence being brought on the record Y. K. Kapoor was imp leaded as an accused under Section 20-A of the Act being the manufacture and charge was framed against him by order dated 20th March, 1968. However, the witnesses already examined by the prosecution were not examined by the prosecution were not examined afresh. On Y. K. Kapoor being imp leaded as an accused the case was adjourned to 22nd March, 1968, for re cross-examination of the witnesses. The case was adjourned on the said date for 3rd April, 1968, as Narinder Kumar accused was not present and he had sought exemption from appearance. The request of Narinder Kumar having been allowed, the case was adjourned to 3rd April, 1968, when the re cross-examination of two witnesses was recorded and the case was fixed for 15th April, 1968, for the statement of Y. K. Kapoor. In his statement Y. K. Kapoor admitted that he was the proprietor of the factory and that they manufactured tomato ketchup besides other food products. He also stated that his factory was licensed under the Fruit Products Order, 1955, and their products were manufactured according to the specifications of the Food Products Order. He also admitted that one dozen bottles in sealed condition were sold on 25th March, 1967, to M/s. Fancy Departmental Stores, Kailash Colony, New Delhi, for Rs. 14.18 vide credit memo. No. 20805 dated 25th March, 1967, along with the written warranty which was embodied by the Credit Memo, marked as D.W. 1/A. He also stated that bottle of tomato ketchup marked D-2 was manufactured by his factory and was in the same condition in which he had sold it though he contested the report of the Public Analyst stating that the same was wrong and that the tomato ketchup supplied by him to M/s. Fancy Departmental Stores was not adulterated. His stand was that the Public Analyst analysed the colours by means of wool dyeing test and that he did not make confirmation of that test by any other test adding that the wool dyeing test did not hold good without the confirmatory test. In his defense he examined four witnesses. S. Roy, Public Analyst, Delhi, D.W. 1, who stated that colour test dyes were carried out by them by applying wool dyeing test and they did not apply the chromatographic test for its confirmation. He further stated that the latest instructions regarding testing coal tar dyes were that both the tests, i.e., wool dyes test and chromatographic test, be performed.

6. M. Bhatia (D.W. 2), Deputy Senior Marketing Officer, Food Products, New Delhi, was examined to prove that M/s. Northland Industries were duly licensed according to which they were entitled to manufacture tomato ketchup as well as other items.

7. Dalip Singh (D.W. 3) Clerk from the Directorate of Health Services, New Delhi, proved copies of the minutes of the meeting held on 15th November, 1967 at the Indian Standard Institution and the minutes of the 12th Emergency Meeting of the Analysts Sub-Committee held at Central Food Laboratory Calcutta on 24th and 25th January, 1968. The said copies, he stated, were Exhibits D.W. 3/A and D.W. 3/B.

8. Y. K. Kapoor, appeared as his own witness as D.W. 4 and re-affirmed his earlier stand taken by him as D.W. and by Narinder Kumar and the deposition made by him in his statement under Section 342, Cr.P.C. He stated that he was technically qualified person holding the degree of M. Sc. (Chem.) and that in his factory they used permitted food colours. Denying the opinion of the Public Analyst that the sample was found adulterated due to the presence of coal tar dye he stated that M/s. G.C. Industries had sent a sample of their imported colour and their tomato ketchup for analysis to the C.F.T.R.I. Mysore, which is a Government Laboratory. Copy of that report, he stated, was sent to him by G.C. Industries. According to the said report, he contended that the C F.T. R.I. had first tested the tomato ketchup by conducting wool dyeing test which showed presence of non-permitted food colours but the same sample when analysed by another test, namely, paper chromatographic test, the colours were found to be conforming to law. He further stated that on his suggestion deputation of the persons engaged in the manufacture of tomato ketchup and other food products waited upon Shri Y. K. Subramaniam, Deputy Director of Health Services. By the time they waited upon him the witness came across an article published in the May-June 1967 issue of the Indian Food Packers on page 29-30 mark 'W'containing an article by Shri Y. K. Subramaniam and Shri H. C. Bhatacharya of C.F.T.R.I, indicating that the confirmatory chromatographic test must be performed to detect the presence of non permitted food colours and that the wool dyeing test was not a conclusive test, according to him a meeting was held on 15th November, 1967, at Manak Bhawan, at which he and Shri S. Roy, Public Analyst, Delhi (D.W. 1), besides others, were present. He proved a copy of the report of the said meeting marked X. Another meeting, namely of the analyst sub-committee, was held at the Central Food Laboratory, Calcutta, on 24th and 25th of January, 1968, and he proved a copy of its minutes as marked Y. His case, accordingly, was that the Public Analyst had not performed the proper test of detection and identification of food colours and contended that his report should not be relied upon.

9. The trial court by its impugned judgment acquitted Narinder Kumar and Ram Swarup on the basis of the warranty issued in their favor in pursuance of the provision of Section 19(2) of the Act holding that they had sold the sample bottles in the same condition in which they were purchased by them from M/s. Northland Industries. On perusal of evidence the trial Court held that the sample bottles of tomato ketchup sold by the accused persons were the same which Y. K. Kapoor had supplied to them on warranty and bill Exhibit D.W. 2/A and that the bottles sold to the Food Inspector were in the same state in which they were bought from Y. K. Kapoor. As regards Y. K. Kapoor it was held that the trial against him proceeded in disregard of the provisions of Section 351(2) of the Cr.P.C., 1898, in that after the charge was framed he was only given an opportunity to cross-examine the witnesses earlier examined and that as required by Section 351(2) of the Code the statements of the witnesses which were required to be recorded in the presence of Y. K. Kapoor, were not recorded and there being an illegality in the trial, it was held that the same stood vitiated. The trial court accordingly acquitted Y. K. Kapoor respondent as well.

10. The Corporation in this appeal challenges the correctness of the view taken by the trial Court as regards Y. K. Kapoor.

11. Now, Y. K. Kapoor was imp leaded as an accused person as a manufacturer of the tomato ketchup in pursuance of the provisions of Section 20-A of the Act which reads as under :-

'Power of court to implead manufacturer, etc. : Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of article of food, the Court is satisfied on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then the Court may, notwithstanding anything contained in sub-section (1) 351 of the Cr.P.C., 1898 or in Section 20 proceed against him as though a prosecution has been instituted against him under S. 20.'

12. In the instant case, the sample was lifted on 29th May, 1967, and the impugned judgment is dated 21st December, 1971. The Cr.P.C., 1898, was applicable at the time when the trial of the accused-persons took place in the instant case. A perusal of Section 20-A shows that it is an enabling section, giving discretion to a Court in a particular case, having regard to the evidence adduced, in the interest of justice, to implead the manufacturer, distributor or dealer, as the case may be, during trial of any offence under the Act. The expression 'trial' would include pre and post charge stages. Once the Magistrate in the instant case elected to implead the manufacturer in the trial on being satisfied that he was also concerned with the offence, the trial had to proceed in accordance with the provisions of sub-section (2) of Section 351 of the Cr.P.C. 1898 (hereinafter called 'the Code').

13. Shri D. R. Sethi, the learned counsel for the appellant, however, contended that Section 20-A of the Act is a self-contained provision of law and the procedure provided therein being a special provision for the trial of a manufacturer, distributor or dealer on being imp leaded in a case, the special provision envisaged by Section 20-A of the Act has to prevail over the general provision in the Code contemplated in Section 351(2) thereof. It was strenuously contended that so far as Section 20-A of the Act is concerned, it does not make any provision for a fresh trial and the Act being a Code in itself have laid down its own procedure there was no question of a fresh or new trial, re-recording the statements of the prosecution witnesses because it was the same trial which was going on. The submission is devoid of any merit. The learned counsel was not able to point out any provision in the Act laying down the procedure for the trial of offences committed under the Act. Section 20-A of the Act does not prescribe any procedure in conducting a trial. It is only an enabling section vesting discretion in a magistrate to implead the manufacturer, distributor or dealer on being satisfied that such a manufacturer, distributor or dealer was also concerned with that offence. Section 20-A dispenses with the written consent of the concerned authority enumerated in Section 20(1) of the act for prosecuting a manufacturer, distributor or dealer, in case the Court trying an offence alleged to have been committed by any person under the Act elects to implead the manufacturer, distributor or dealer on being satisfied that he was also concerned with that offence. Thus, Section 20-A of the Act constitutes an expressly laid down exception to the requirement of sanction under Section 20(1) of the Act as observed by their Lordships of the Supreme Court in M/s. Bhagwan Das Jagdish Chander v. Delhi Administration : 1975CriLJ1091 . Beyond that Section 20-A prescribes no procedure for conducting the trial which has to be conducted in accordance with the provisions of the Code. A Full Bench of this Court in Municipal Corporation of Delhi v. Laxmi Narain : 8(1972)DLT1 , has held that the Act is a Special Act which provides no procedure for the trial of offences under the Act, and hence offences committed under the Act have to be tried according to the provisions of the Code.

14. A Division Bench of this Court in Municipal Corporation of Delhi v. Amar Lal 1977 (2) FAC 283, following the above-noted decision of the Full Bench, observed that when a person is imp leaded as an accused under Section 20-A of the Act, the trial against him has to commence afresh and witnesses re-heard and that non-compliance with these provisions vitiates the trial.

15. A similar view was taken by a Full Bench of the Kerala High Court in Food Inspector, Palghat Municipality v. Seetharam Rice and Oil Mills . Kader, J., with whom the other Judges concurred, observed therein that the words and expressions used in Section 20-A of the Act are very clear and that the manifest intention of the legislature in enacting this section was to have a joint trial of the persons mentioned therein but in order to avoid prejudice or difficulties to all concerned, it is necessary and desirable to commence the entire proceeding afresh with all the accused (the original as well as the imp leaded) on the array. It was further observed that it would be violating the will of the law makers land the spirit of the law besides doing violence to the language of the section, if a different construction was put on this section.

16. In view of the settled position in law, the submission sought to be made by the learned counsel for the appellant that Section 20-A of the Act being a special provision, would override the provisions of Section 351(2) of the Code cannot be countenanced and has to be rejected. The Code is designed to further the ends of justice and not to frustrate them. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines and one of the requirements of the Code is that evidence should be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of his counsel. That is why Section 351(2) envisages that on a person being imp leaded as an accused during the pendency of the trial, proceedings are to commence afresh and witnesses reheard. The contravention of the said provision cannot be said to be a curable irregularity. The law insisting that all evidence in criminal trials be recorded in the presence of the accused, the breach of this rule vitiates the trial altogether.

17. The other submission of Shri Sethi that even if it be held that the provisions of Section 351(2) of the Code are applicable, they are merely directory and not mandatory and unless prejudice was shown to have been caused to the respondent the trial could not be said to be vitiated, is equally devoid of force. Under the Code certain things are vital, such as the provisions of Section 351(2) disregard of which is fatal to the trial. Prejudice is writ large on the face of the record when evidence recorded at the back of the accused person is sought to be used against him. Such a procedure is not only contrary to the express provisions of the Code but abhorrent to what might be called natural justice. In view of the well settled position in law, I express my inability to concur in the submission of Shri Sethi that on a person being imp leaded in a trial in pursuance of the provisions of Section 20-A, the evidence already recorded remains and can be used against such a person notwithstanding the fact that fresh trial was not commenced in the case and witnesses not reheard.

18. Shri Sethi, however, strenuously contended that reference to sub-section (1) of Section 351 of the Code in Section 20-A of the Act was of a descriptive nature not attracting its applicability because under Section 20-A of the Act a person whether present in Court or not can be summoned and imp leaded as an accused person in the absence of sanction to prosecute him when the Court is trying any person for having committed an offence under the Act while Section 351(1) of the Code talks of a person present in Court alone being imp leaded as an accused person. That being so, he submitted, the provisions of Section 351(2) could not be said to be applicable to a case tried by a Magistrate in respect of an offence committed under the Act. He further contended that this aspect of the matter was not brought to the notice of the Full Bench of this Court in M/s. Bhagwan Dass Jagdish Chander's case 1975 Cri LJ 1091 (supra) and accordingly sought to distinguish that authority. The Code being applicable to the trials of the offences committed under the Act, the distinction sought to be made out is in vain. Section 351(2) is applicable to all trials under the Act and its non-compliance is fatal.

19. It was then contended that the respondent having cross-examined the witnesses there was sufficient compliance of the provisions of Section 351(2). This submission was sought to be reinforced by reference to the order dated 22nd March, 1968, and 3rd April, 1968, passed by the Court. No doubt, by order dated 22nd March, 1968, the case was fixed for 3rd April, 1968, for cross-examination of the witnesses. The mere fact that witnesses were cross-examined by the respondent would not amount to compliance of the provisions of Section 351(2) which specifically requires case being commenced afresh and to rehear the witnesses on an accused person being imp leaded in pursuance of the provisions of Section 20-A of the Act. The omission in doing so, without doubt, vitiates the trial, benefit of which ought to go to the respondent.

20. Shri Sethi placing strong reliance on the observations of their Lordships in V. N. Kamdar v. Municipal Corporation of Delhi, : [1974]1SCR157 that even in a case where a Magistrate could properly have imp leaded the manufacturer, distributor or dealer in a proceeding against a person alleged to have committed an offence under the Act but failed to do so, that would not in any way confer an immunity upon the manufacturer, distributor or dealer from a prosecution for any offence committed by him, and to bar his separate trial, contended that since a separate complaint after obtaining requisite permission could be filed, it would be appropriate to remand this case against the respondent for a fresh trial. I find no force in this submission. The learned counsel is not right in this submission. Separate trial would not be barred if the respondent had not been imp leaded in this case in pursuance of the provisions of Section 20-A.

21. In my opinion, no ground is made out for remanding the case.

22. The sample in the instant case was lifted on 29th May, 1967, i.e., nearly 13 years ago. It is true that the respondent has been acquitted on the trial being vitiated because of non-compliance with the provisions of Section 351(2) of the Code but the fact cannot be ignored that he had borne the agony of a protracted trial, involving lot of expense, besides bearing the agony of the trial. On a conspectus of all the circumstances of the case I do not consider, it would be proper to remand the case for a fresh trial.

23. The appeal, for the reasons stated above, fails and is hereby dismissed.